As restaurant workers have become eligible for the COVID vaccine in NYC, the city’s restaurants are starting to explore whether to implement mandatory vaccination requirements for their staffs. Such a measure is currently legal according to the Equal Employment Opportunity Commission, but in practice, it opens up a minefield of potential ethical and human resources issues, as demonstrated by the recent debacle at Red Hook Tavern in Brooklyn. Still, it could eventually become a tool restaurants use to protect their staff and convince customers that dining at their establishments is safe.
The prospect of requiring a COVID-19 vaccine as a condition of employment first came under public scrutiny in New York when former Red Hook Tavern server Bonnie Jacobson said in mid-February that she was fired after she refused to get the vaccine immediately. The restaurant has since come out with an official mandatory vaccination policy specifying that all employees are required to get fully vaccinated within 60 days of becoming eligible, except in the case of a medical condition or a sincerely held religious belief, in accordance with current federal EEOC regulations.
Red Hook Tavern’s push to implement a mandatory vaccination policy weeks after restaurant workers became vaccine-eligible in the city makes it an outlier among its peers, according to multiple employment lawyers who are currently discussing such policies with restaurant clients across the city. Vaccine appointments are still difficult to secure in the city, which could make an early requirement look particularly ham-handed, they say. Plus, city or state legislators could still weigh in with separate regulations on vaccination requirements in the workplace, which may eventually supersede the federal EEOC ruling. But perhaps the biggest challenge is how restaurants can respectfully go about mandating a policy that can leave staffers feeling like they have no choice on a matter many consider to be deeply personal.
“I think people are smart enough to realize, at the very least, [they] shouldn’t have a knee-jerk reaction and implement something this drastic without speaking with [counsel],” says attorney Brian Klein of NYC-based employment law firm Weinstein + Klein. “But there is definitely a lot of curiosity” about exploring the issue, he says.
Zero Hour Health and Zedic CEO and epidemiologist Roslyn Stone is not currently recommending that her clients implement mandatory vaccine policies. The company — which provides clinical guidance and support on various health issues to the restaurant and hospitality industries — works with nearly 500 NYC restaurants and collects self-reported health data for more than 10,000 employees at those locations. It has generally observed that about 50 percent of employees want to be vaccinated now; 30 percent are waiting or undecided; 10 percent don’t want this vaccine; and 10 percent don’t want any vaccine.
“I know I’m preaching to the choir when I tell you that this is an industry that’s been severely financially stressed this year,” Stone says. “We never, ever want to see one of our clients have a test case. You’ve got to do the right thing, and there are ways to do the right thing without making the vaccine mandatory.” Supply is currently one of the biggest hurdles to securing more staff vaccinations, according to Stone.
Jacob Bernard, a bartender at King Tai in Crown Heights, says he believes making refusal to vaccinate a fireable offense “is just shameful.” Bernard — who recovered from COVID-19 last year and has since received a first dose of the vaccine — says that while people should get the vaccine, and “almost everyone” at King Tai has, making it mandatory now will only add more stress to the job by forcing staffers to scramble for appointments, and it’ll further push away people who already distrust the vaccine. “Until supply and trust catch up, and we get more people immune, we can’t make essential workers’ lives and jobs even harder than they already have been,” Bernard says.
Right now, many restaurants are eager to help staffers secure appointments and otherwise offer informed support in the vaccination process, in the hopes that many staffers will voluntarily get the vaccine.
Union Square Hospitality Group is helping employees schedule appointments, offering both English- and Spanish-language support. It offers paid time off for staffers to get vaccinated, but vaccinations are not mandatory, according to a USHG spokesperson. At Korean seafood spot Haenyeo in Park Slope, 30 to 40 percent of the restaurant’s 25 staffers have voluntarily gotten a first round vaccination with support from the restaurant, but it does not require the measure, according to general manager Chieun Ko-Bistrong. Dear Mama, a cafe with two locations in Harlem, has seen 15 to 20 percent of its approximately 25 employees get vaccinated voluntarily so far, founder and CEO Zachary Sharaga says.
Fast-casual chain Xi’an Famous Foods is also lending appointment scheduling support to employees, according to CEO Jason Wang, and it’s also not requiring vaccinations.
“At this time, with the limited vaccination appointments available, it’s simply not yet practical for employers to mandate vaccines, with deadlines to get them,” Wang says. But that doesn’t mean the company won’t reconsider a mandatory vaccine policy at a later date. “I think once we have enough appointments to go around and enough doses in the city, it seems like a smart policy for us to consider,” he says.
Attorney Klein says that he has mostly fielded inquiries from restaurant owners asking whether they should implement a mandatory vaccine requirement, rather than owners who have already made up their minds and need help putting a policy together. By the end of February, Klein hadn’t finalized any mandatory vaccine policies yet among the firm’s roughly 50 restaurant clients, he says, but “there are several right now that are essentially teed up,” pending some additional information and final client sign-offs.
Similarly, labor lawyer Carolyn Richmond and her team at Fox Rothschild haven’t drafted “more than two” mandatory policies for city restaurants at this point, she says. More often, they have been tasked with putting together letters to employees that strongly encourage vaccination. Richmond — who also advises the NYC Hospitality Alliance’s member restaurants — estimates that the firm has put together letters encouraging vaccination for 20 to 25 NYC restaurant groups so far. Richmond works with about 1,000 restaurants in NYC.
In general, this practice doesn’t appear to be a top priority yet for restaurants, Richmond says. Owners are more interested in preparing for the next round of Paycheck Protection Program loans and asking for help on how to implement quarantine policies if an employee tests positive for COVID-19. Plus, “very few restaurants are really open right now,” Richmond says. “Even with outdoor dining, or at 25 percent indoor capacity, it’s a bare-bones number of employees. Until we start seeing 50 percent or more of the staff being hired and brought back, a lot of these questions are being pushed down the line.”
Still, it will become a more serious question as operating restrictions lift and restaurants can more clearly weigh the potential benefits of implementing such a measure. Klein says that, among the firm’s restaurant clients who are discussing mandatory vaccine requirements, they are primarily interested in exploring the option in the name of staff and workplace health safety — but they’re also being regarded as a potential marketing boon. It may be normal in the future to see restaurants publicly promoting that their staff is majority or fully vaccinated against COVID-19 in the same way that Department of Health letter grades are currently displayed in front windows, Klein says.
Fox Rothschild’s Richmond has seen similar interest among her clients. “Guests are reluctant to come back,” Richmond says. “And restaurateurs want to be able to have everything in their arsenal to say we’re doing everything we can for you to come back and enjoy your time here.”
Haenyeo’s Ko-Bistrong cautions that the process for receiving a vaccine in the city needs to become a lot easier — and more blatantly free, especially for those without health insurance — before the restaurant would consider making vaccination a requirement. She also says that she could “absolutely” see the subject of vaccination becoming a part of the interview process in the future. If someone chooses not to get vaccinated, it has to be clear that they are taking other COVID-19 safety precautions seriously, including wearing masks and gloves at all times.
“Safety is really the most important thing,” Ko-Bistrong says. “We are in the service industry, and we want to make sure that our guests are safe as well as ourselves.”